March 8, 2016 UPDATE: Legal fees paid — on to Federal Court for Charter trial contesting Canadian FATCA IGA legislation.
Canadians and International Supporters:
You came through once again: $594,970 for legal costs have now been donated and our outstanding legal bill is finally paid off.
Thanks especially to those who donated even though they never had any “spare” money to give, and despite this gave over and over and over again.
This last round of fundraising also shows that our Canadian lawsuit remains dependent on the kindness of our International Friends: There would be no lawsuit without their financial help.
Know that a very generous donation (today) from a supporter in the United States made it possible to pay off the remaining legal debt. Also please appreciate that there would be no lawsuit without the help of the Isaac Brock Society which has kindly let us use its website to solicit funds.
Our next step is the Constitutional-Charter trial in Federal Court.
For this we need more Canadian Witnesses, and my next post will be devoted only to a request for Witnesses willing to go public, like our Plaintiffs Ginny and Gwen.
For the future: I want a win in Federal Court — and I want the new Liberal Government not to appeal that win.
Thank you all for your support,
Stephen Kish,
for the Directors,
Alliance for the Defence of Canadian Sovereignty
@Ginny
Actually they have lost on Section 15 but later won on Section 1 twice. Egan vs Canada is one of the cases while Lavoie vs Canada is the other.
I don’t by any means attempt to predict the outcome but I don’t anyone else including those strongly in favor of FATCA can either.
http://www.parl.gc.ca/content/lop/researchpublications/bp402-e.htm#section15
I would also note that “commercial consequences” have NEVER been used to justify a Section 15 Charter violation(or for that matter any Charter violation I think) under the terms of Section 1. Now I am not saying the government can’t be make a successful case under Section 1 using “commercial consequences” however, I would suspect most lawyers with extensive charter experience would tend to advise “against” using such as justification given what in most circumstances would be fairly low odds of success. The case law of Section 1 is narrower in reality than what the plain text would tend to imply.
**In terms of case law I am referring to Andrews, Oakes, Big M Drug Mart
I guess the further question is whether compliance with FATCA is of sufficient importance based Sec 1 due to its commercial implications. Again this is a fairly open question.
A free and democratic society is one whose laws are made by a foreign free and democratic society.
@Tim
Andrews, Oakes, Big M Drug Mart are the trilogy of old cases that started the discussions surrounding s.15 and to a degree s.1. They set up and later expanded the s.15 grounds from merely being the enumerated grounds to the analogous grounds. And citizenship has been recognized in both grounds.
S.1 is a powerful tool, and although there have never been cases that clearly rely on’Commercial consequences” per se, one can read between the lines and expect that to be expanded. As opposed to the US Constitution, the Charter is viewed as a living tree, and as the composition of the Supreme Court of Canada changes, so do their decisions. I always worry about s. 1 arguments, far less about the notwithstanding clause, which has rarely been invoked.
What I do have great confidence in, or perhaps I should say “who” is our lawyer, who not only knows the subtle differences applicable to both sections, but is not constrained by either.
Anyway, I am not commenting here to debate law with you- though that is one of my favorite things to do- but to agree with you that any Charter case ( other than perhaps Criminal cases) is always unpredictable if it is novel. Our case is quite novel. Big Banks are a powerful industry. To be seen if our current PM is prepared to handle this matter. New brooms are often flashy and for some reason ( Obama/Trudeau) appeal to a lot of people initially and later go on to disappoint those same cheerleaders. I am too old to be taken in by the Flash Gordons of any political stripe.
Folks may find the following of interest and may care to comment.
http://www.jamaicaobserver.com/news/What-is-America—s-real-objective-with-FATCA_44967
@Ginny, thanks for your comments which tie into Joe Arvey as the artist.
Politically, I do disagree with some of his work but I highly respect his skills as he is the ultimate craftsman.
Also in the cases that he has taken and won where I politically disagree, even though I remain in political disagreement I believe that he reached the correct conclusion within the writing of the law. He has simply shown that the law must be changed in order for me to have my desired political result. He has not twisted the law to get a result.
@Ginny
The closest thing to a commercial consequences type case is the pre Charter ruling on the Anti Inflation Act back in the 1970s.
http://www.canlii.org/en/ca/scc/doc/1976/1976canlii16/1976canlii16.html
The key issue with using this argument is the Anti Inflation Act was intended to be a “temporary” measure while the FATCA IGA is largely intended to be permanent in nature(Yes I know about the vague clause calling for good faith re-negotiation prior to Jan 1 2017).
Additionally if you read the text of the legislation passed by Parliament to implement FATCA there are no findings of any type of national emergency or crisis unlike in the Anti Inflation Act.
@Tim
Thanks for that well needed waltz down memory lane. Interesting case; I was involved peripherally in it on behalf of an intervenor. The good old days of the Privy Council, POOG arguments ( peace, order and good government). I take it you have an interest in Constitutional law. Also, the composition of that bench was one of the most interesting,imo. I believe Peter Hogg ( and no doubt others) wrote a lot of articles about it. It’s also included in every Constitutional Law course case book. I hadn’t thought about it in a long time, so thanks.
If the Canadian Civil Liberties Association (CCLA) does not include FATCA in this initiative, I want to know the reason why.
https://ccla.org/campaigns/charterfirst/
THE CANADIAN GOVERNMENT AND PARLIAMENT ARE REQUIRED TO UPHOLD THE CHARTER OF RIGHTS AND FREEDOMS WHEN DRAFTING, AMENDING, AND VOTING ON, NEW LAWS.
SO, HOW IS IT THAT SO MANY OF THEM SEEM TO VIOLATE CHARTER RIGHTS?
INADEQUATE CHARTER REVIEW HELPS ADVANCE BAD LAWS LIKE BILL C-51
In recent years, CCLA has become increasingly concerned about critical accountability and transparency gaps in our law-making process. These gaps allow contentious legislation — think: Bill C-51, the Fair Elections Act, the omnibus mandatory minimums crime bill, and the bill limiting refugee access to Canada — to be passed without open, adequate, and meaningful consideration of their constitutional vulnerabilities (i.e. if, how, and to what extent a proposed law may violate the Charter).
AVOIDABLE COURT BATTLES & RIGHTS AT RISK
That job has been left to the courts, forcing affected individuals and public interest organizations such as CCLA to launch a growing number of Charter challenges. These come at a significant cost, particularly to taxpayers, who, during the last government’s tenure, footed a legal bill of nearly $5 million dollars. But, of even greater concern, as these avoidable court battles play out — many of them take years — the laws in question remain in effect, leaving the rights and freedoms of Canadians at risk.
PROACTIVE MEASURES NEEDED
Notwithstanding the promise from the Trudeau government of a ‘new dynamic’ on Charter matters, CCLA believes that proactive accountability and transparency measures are needed to help us ensure our government and parliamentarians — both present and future — are compelled to honour their fundamental duty to uphold the Charter throughout the law-making process.
CCLA IS EXPLORING OPTIONS AND CONSULTING EXPERTS TO DEVELOP RECOMMENDATIONS FOR THE MINISTER OF JUSTICE THAT WILL ENSURE:
JOIN THE #CHARTERFIRST CAMPAIGN AND TOGETHER LET’S PUT OUR LAWMAKERS TO THE CHARTER TEST!
@Ginny
Yes I happen to have an interest in Constitution law. I don’t know if John, Stephen, or Gwen have told you much about me but I have served as an “unofficial” advisor to ADCS since before it was even formed. Going even further back I was the first person to suggest Joe Arvay as a possible litigator on our behalf way way back in the earliest days of Brock(circa 2012).
I don’t think we met the last time I was in Toronto but I have met Gwen, John, Stephen, and Allison Christians on several occasions.
I believe a not so well noticed part of Arvay’s argument does have to do with provincial vs federal powers and whether the IGA is truly a legitimate exercise of the Federal Government “taxing” powers or does it require provincial consent to the extent it effects areas of law under provincial jurisdiction.
@Ginny
Way way back in the day I discovered that there had been a previous move towards a Charter Challenge of Canada’s acceptance of the Philipines taxing Filipino citizens residing in Canada. The suit never got off the ground because the Philipines abolished citizenship based taxation shortly afterwards.
Note: All the same Section 1 argument would have applied back in 1996 but several prominent law professors though the case had merit.
http://isaacbrocksociety.ca/2012/07/18/must-read-old-paper-on-conflict-between-filipino-citizenship-based-taxation-and-the-canadian-charter/
From 1996:
“A potential Charter challenge can be mounted on behalf of these domestic workers (or other
. Filipino nationals) where the Philippines Convention, as a law entered into by Canada, is found to
be ultra vires. The Convention, albeit of international dimension, discriminates on the basis of
national and ethnic origin and is contrary to section 15(1) of the Charter and in its being upheld
by Canadian authorities is in contravention of section 7 of the Charter.
The Charter protects all individuals and groups to the extent that they suffer discrimination
on the basis of their nationality or ethnic origin. In this instance, domestics are discriminated upon
solely on the basis of their nationality (e.g. citizenship) and their security and liberty of person is
threatened by the upholding of a Convention that runs counter to the tenets of the Charter. The
Charter is the supreme law of the land and conventions and treaties entered into by the Canadian
government could be subject to its review.”
“The Charter is the supreme law of the land and conventions and treaties entered into by the Canadian
government could be subject to its review.” WOW!
@ Tim
No I knew nothing of your history. Thank you so much for telling me about yourself. It’s ironic ( to me anyway) how late in the game I learned about our issues compared to so many of you. Thank you so much for all you have done to advance our cause. You suggested the perfect lawyer for our case, which strongly influenced my reasons for offering to be a plaintiff. I hope I will have the opportunity to meet you and many others some day. The reality is I have only met Gwen and John Richardson in person, but have made many friends here and from Maple Sandbox. I owe a debt of great gratitude to so many of you, which I know I will never be able to repay. At times, this has been a difficult experience for me, but the support makes it very well worth it, thanks to you and all the kind folks.
Now that I consider it, you ‘old-timers’ must have wondered who the heck I was! That’s a story for another day I guess.
Now, I can’t help but ask if you ever considered going to law school, since you have such a keen interest especially in Constitutional law.
The debt of gratitude is ours, Ginny. May you and Gwen stay strong through what is surely to be an emotional roller coaster ride for the rest of us.
oops typo, asked = ask
@ Bubblebustin
Thank you. Gwen is one of the best persons I have ever met. We are so compatible it is crazy! We are able to support each other whenever that is needed, especially when things can get pretty hectic in the background of this case. I just want to assure all of you that she and I and the ADSC committee work every day to advance our cause. There’s always some facet that comes up daily which one or more of us deals with not just because we believe in this cause, but more importantly our supporters and donors do as well, and we do not want to ever let any of you down. We are well aware of the financial sacrifices so many donors have made and it is painful to always ask for more donations. But that is the reality of litigation: it is expensive and slow. Two frustrations for all of us.
But if I didn’t believe we will get there some day, I couldn’t be doing this. And so I say and always will say: thank you to all of you. Your support is immeasurable.
Yes, we are all in this together – you, Gwen, ADCS and your supporters, whether they be financial, emotional, or both. We will prevail – together!
@Tim, WOW…..too bad that case had not been settled!!!!
@Ginny (@Gwen too), Once again and maybe it embarrasses you, I truly commend both of you for what you are doing and my standards are very high. One day I do hope to shake your hands and express my eternal gratitude.
Help for some of our Canadian retirements?
http://isaacbrocksociety.ca/media-and-blog-articles-open-for-comments-part-2-of-2/comment-page-65/#comment-6940577
AND, https://www.taxconnections.com/taxblog/converting-the-rrsp-to-the-rrif-constitutes-john-richardson/#.VmmZI_krLIU
Converting The RRSP To The RRIF Constitutes Opening A New Account And #FATCA Enquiry
How many of us will have to convert RRSP to RRIF this year?
We converted this year. Our finance guy at RBC knew full well of our status. On opening the RRIF he stated ‘I checked with head office and they confirmed that a RRIF is ‘not reportable’ and that no confirmation of citizenship ( W8-Ben or W9) was required.’
That is important information that any of us should have on the tips of our tongues to take to our banks as we convert RRSP’s to RRIF’s before the end of the year. Thanks for passing along our experience with this, Duke.
(I also did not have to fill out any paperwork for my conversion to RRIF a couple of years ago, though I (born in the USA) had in hand a CLN — even though I have not yet given a copy to either of my *foreign financial institutions*. The one holding my RRSP and now RRIF knew of my place of birth. The other *should know*.
Since an RRSP isn’t reportable, and since an RRIF is just a conversion of same due to age requirements, I hadn’t expected a W8-Ben or W9 ( whatever those creatures are) to be required.
Here’s one tidbit I recently found out. If your RRSP is actually a spousal RRSP, and that spouse is younger than you, there is no requirement to convert to a RIFF until the younger spouse/partner reaches 71.
Sunday, December 13th marks our 30th anniversary of wedded bliss and apparently having married a younger man has another unanticipated benefit! Who knew?
🙂
@George
Little would make me happier than to be able to shake your hand some day. Your support has always been a constant factor in how I try to keep positive during this nightmare scenario. I’d be happy to walk with you to your local anytime. Next time I am in the U.K.,the tea or ale of your choice is on me for the first round.
@Calgary. The CCLA will not say anything at all about Fatca as it is a political hot potato plain and simple. People like Steve Paikin won’t even consider touching it either. These people and groups are very scared of the USA and their powers. The Canadian Liberals who just won the federal election have done the “easy” and “vote supporting” decisions fast as lightning in the public. They know fully well what they have told us in written material and some posted material about what they thought of Fatca before the election. Right now, Mr. Trudeau is wondering how to worm out of anything concrete. We must understand that they ARE getting our emails, letters and all of our concerns. they just don’t quite know what to do yet. There will be high level think tanks on how to handle this issue. I worry that the Charter trial judge will be bought and paid for or told to rule in the USA’s favor to “save Canada” from our enemy to the south. I bet that the Attorney General has seen emails and concerns about Fatca, however, she is being told not to say anything and keep quiet until they can figure out a way to either stall us or make us go away in a creative way. Watch and learn I guess…..